New legislation covering a mentally disabled adult's entitlement to make important personal decisions should be introduced, according to a consultation paper from the Law Reform Commission.
The paper argues that, currently, the rights of adults with a mental disability are being undermined because an "all-or-nothing" approach to the person's ability to make decision is being taken.
"If it is shown that a person lacks capacity for some reason, the current law sometimes has the effect of completely changing their status from a person with capacity to a person without capacity," the paper says.
The paper, Vulnerable Adults and the Law: Capacity, unveiled this morning, calls for reform of a number of areas affecting the rights of adults with legal capacity issues such as those with an intellectual disability, mental illness, acquired brain injury, dementia or limited communication skills.
The commission reiterates a concern identified in a previous paper about the ward-of-court system and calls for an office of the public guardian to be established. It says this could be created under new legislation that provides a clear definition of capacity that accounts for distinctions in the type of decisions an adult with a mental disability can make.
The paper says the law should also provide a mechanism for assessing "a person's decision-making ability in relation to a particular decision at the time the decision is to be made".
It also says "procedural protections" should be put in place to ensure a person with limited capacity has the necessary information and access to appropriate representation and advice when their capacity is being determined. Provision should also be made for periodic review of any determination.
The commission also called for a review of Section 5 of the Criminal Law (Sexual Offences) Act 1993 which makes it a criminal offence to have sexual intercourse with a person who is mentally impaired.
"This provision probably criminalises sexual relationships of, and between, adults with limited decision-making ability even where there is genuine consent between them."
The Minister for Health should formulate a code of practice for healthcare professionals, providing guidelines for assessing a person's capacity to make a healthcare decision. It could also provide guidance for urgent situations where treatment can be carried out without the consent of the adult concerned, the commission says.
However, certain procedures such as sterilisation without consent should require a court application before the procedure can be carried out, it added.
The commission is inviting submissions from interested parties with a closing date of August 2005.